Child custody is a sensitive and crucial issue a couple faces while going through a divorce. Child custody can be given solely to a parent, also known as sole custody, where the other parent often has the right to visit the child under certain conditions. Alternatively, child custody can also be shared by the parents.
A couple should make the right decision while considering their child’s future and best interests. Here, we talk about what sole custody is and what you need to know before moving to court to get sole custody of your child.
What Is Sole Custody?
- Legal custody gives the parent the right to make decisions regarding the child’s education, religious upbringing, medical care, moral development, and such important things in their life.
- Physical custody gives the parent the right to direct the child’s day to day life. It also includes actual physical care, such as where the child must reside and how their day-to-day needs are met.
In the case of sole custody, both legal and physical custody rights are with one parent, who is known as a legal custodian. The other parent may or may not have visitation rights depending on the child custody laws of that particular state. In some states, the term full custody is used when the complete rights over a child are given to one parent.
When Does A Parent Get Sole Custody Of The Child?
The courts usually consider joint custody so that the roles and responsibilities are divided between both the parents. But in some cases, the court intervenes and awards sole custody to one parent. Read on to know when the court chooses the sole custody option over joint custody.
- Abuse: When one of the parents has a history of physical or emotional abuse, then the court can award sole custody to the other parent to protect the interests of the child. In the case of a serious threat from one parent, the court may also restrict the abusive parent from visiting the child (2).
- Neglect: When the child is subjected to neglect, with one or neither of the parents providing for the child’s basic needs such as medical care, adequate food, clothing, shelter, and protection, the sole custody is given to the responsible parent or a close relative (when both the parents are neglecting the child).
- Abandonment: When one parent abandons the child and is unwilling to take care of them, then the other parent could get sole custody. If both the parents have abandoned and show little interest in the child’s welfare, then the court may give sole custody to grandparents or close relatives.
- Addictions: If the parent is addicted to alcohol, drugs, gambling or other additions and is unable to take care of the child’s well-being, the court may give sole custody of the child to the trustworthy parent or a close relative.
- Mental illness: If the parent has a mental disorder or is suicidal, then the child cannot be left under their care. In such situations, the court can intervene and award the sole custody of the child to a stable and healthy parent or a close relative capable of looking after the child.
- Incarceration: If a parent is facing a prison sentence, then they obviously will not be available to take care of the child. Then the court may offer sole custody to the other parent and might award visitation rights to the imprisoned parent.
- Relocation: After the split, if one of the parents decides to relocate to another country, then it may not be possible for them to get involved in the child’ life. In such situations, sole custody is granted only when the leaving parent agrees to it.
During the divorce, the partners will have to discuss all the possible issues surrounding custody. They can come to a consensus that is in the best interests of the child, and the court will pass the judgment accordingly. But, if the partners decide to go for a trial, then the court might decide on joint custody or sole custody with visitation to the other parent.
When one of the parents falls under any one of the above criteria, then the other parent has to prove in the court that the partner is incapable of taking care of the child to win sole custody.
How To Get Sole Custody?
While deciding the custody and visitation, the court considers the following factors to deliver a fair verdict.
The biggest factor to decide a custody battle is the ‘best interest of the child,’ which depends on (3):
- The age and health of the child
- The emotional bond between the child and each of the parents
- The financial and emotional capacity of the parent in taking care of the child
- Any history of abuse, violence, and substance abuse of the parents
- The child’s ties to the school, home, and the community
If both the partners agree for sole custody, then the court will ask the parent to produce all the documents along with a parenting plan and visitation schedule. If everything is satisfactory, the court will then sign the agreement. If the partners are not able to come to a conclusion on child custody and visitation plans, then the court will appoint a neutral third party to help in mediation.
When one of the parents is abusive or incapable of taking care of the child, but still insists on joint custody, then the other parent can win sole custody through a trial. Then, the other parent needs to convince the court and obtain a court order, to continue fighting for joint custody.
In the case of a trial, the parent looking to win sole custody must prove to the court that it is best for the child to stay with them and that joint custody with the other parent is not. If one of the parents is abusive or unfit, then the other parent needs to produce supporting evidence in the court. If the custody battle does go to court, you should have a competent attorney to argue your case.
If the court finds the evidence satisfactory and believes that sole custody is in the best interest of the child, it passes the order, with or without visitation rights. However, the parent who is denied child custody or visitation can appeal against it.
What Are The Benefits Of Sole Custody?
While it is always best for the children to be nurtured by both parents, under certain circumstances, sole custody has its own benefits.
- It helps protect the child from an abusive or neglecting parent.
- It shields the child from emotional trauma and helps in establishing greater consistency.
- It is easier to take major decisions regarding the child’s future when there is high friction between the parents.
- Sometimes, sole custody allows the children to grow in a caring and nurturing environment, which joint custody may fail to provide.
Things To Consider Before Going For Sole Custody
Sole custody should not be taken up as an opportunity to punish your ex or avoid conflict or future communication. It is a huge responsibility and will have a significant impact on how the children will grow up.
Before you go for sole custody, make sure that you take it up for all the right reasons because the child’s future is totally in your hands. So make sure you are geared up for such a responsibility.
If it is due to genuine factors such as the relocation of one of the partners or abusive or harmful behavior, then apply for sole custody.
Also, if the court sees that both the parents are available and fit to take care of the children, then it would reject sole custody and advice the parents to learn to work as a team for the sake of their children.
Are There Any Alternatives To Sole Custody?
Dependency Court is an alternative to sole custody (4). When a child is subjected to neglect and abuse, then the court removes the child from the family. The child is not handed over to the parents until the court sees them fit enough to take care of the child. This is when the child protection services also come into the picture.
If a child has been put under the care of the Dependency Court, the child’s parents can visit the child under the supervision of a family service counselor. If the parents agree to the court’s orders to participate in the reunification services, then the court could allow them to visit the child unsupervised (5).
Sometimes, the parent who was denied visitations due to abusive or harmful behavior may be granted access to the child if they can demonstrate good conduct or behavior.
Another alternative is both the parents agreeing to a parenting plan (in joint or shared custody) in which one parent has less time with the children than the other (can modify later) (6). The court will allow this.
Divorce is challenging, and the challenge increases when children are involved. Young children are often not able to comprehend their parents’ separation. Taking custody of a child during divorce is important to safeguard their well-being. Sole custody is given to a parent only if the other parent is physically and emotionally abusive, wants to abandon the child, or neglects the child’s interests. The court decides to give sole custody after considering the child’s age, the emotional bonding between the child and parents, and the abusive history in the family. Sole custody is beneficial in saving children from emotional trauma and providing them with a caring environment for development. However, the provision of sole custody should not be misused because children rightfully need the love of both parents.
- Sole custody of the child may be provided when one parent is abusive, has disagreed with taking care of the child, or has a mental illness.
- It is beneficial because it helps protect children from emotional trauma and gives them a supportive environment to grow.
- Before providing sole custody, the court considers factors such as the child’s age, emotional bonding with the parent, and more.
- Sole custody should be taken only to protect a child’s future and not increase conflict with your partner.
- Joint and Sole Child Custody in Albany.
- Section 31A.
- Basics of Custody & Visitation Orders.
- Guide To Dependency Courts- For Parents.
- A Parent’s guide to Juvenile Dependency Court.
- File for Child Custody.